A Supreme Court justice has died. Normally (and according to the Constitution) the process is that the president nominates a successor, the Senate holds hearings, and there is a vote on whether to confirm that nominee. According to the Constitution, that’s their job, and they took an oath to do that job.
President Obama has said that of course he will fulfill his constitutional duty to nominate a successor to Justice Scalia. But this time Republicans have announced that they will refuse to participate in the constitutional process and will not consider any nomination that the president brings them.
This is part of an ongoing Republican attack on our form of government.
Ongoing Attack On Government And Rights
The country has been through years and years of Republican obstruction of everything government does. Why is that?
The architect of the modern conservative movement was corporate and tobacco attorney Lewis Powell, and his blueprint was “the 1971 Powell Memo,” titled, “Attack on American Free Enterprise System.” The memo claimed that “the American economic system” (capitalism) and “business” were “under broad attack” from “Communists, New Leftists and other revolutionaries.” It complained of “the stampedes by politicians to support almost any legislation related to ‘consumerism’ or to the “environment.” It called on business as a class to “conduct guerrilla warfare” against this on “the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences” as well as politicians the public and the courts. The goal was for business to “consider assuming a broader and more vigorous role in the political arena.”
The memo led to the building of the massive corporation/billionaire-funded conservative “infrastructure” of ideological “think tanks,” activist organizations and media/propaganda “echo chambers” that constantly push corporate/conservative propaganda out to the public. Book after book, article after article, study after study has warned of this movement effort to alter our government away from democracy and toward a corporatocracy.
Once such conservative movement organization is the Federalist Society, established in 1982 and receiving funding since from conservative foundations including the Earhart, Bradley, Simon, and Olin Foundations, and the Carthage, Koch, and Scaife Foundations. Justices Scalia, Roberts, Thomas and Alito were all members of the Federalist Society.
For how long did the Republican majority on the Supreme Court give us one highly partisan 5-4 decision after another, reversing one hard-won civil right, environmental gain, consumer right, worker right after another? Fifteen years ago the Republican Five even forced on us a president who didn’t receive a majority of the vote.
After Barack Obama was elected president, the Republican minority filibustered more than 500 important bills (on issues ranging from infrastructure funding to ending tax breaks for offshoring jobs) before they took control of the Senate – an unprecedented number. But it has not just been legislation; they have blocked nominees to positions that keep government functioning. They have blocked appointments to judgeships: there are 35 Obama judge appointees who were waiting for a Senate confirmation vote long before Senate Republicans conjured up their no-appointees-during-an-election-year stance, one as far back as September 2014.
Republicans have also continually obstructed by starving government agencies of the funds they need to operate – the Internal Revenue Service is a case in point. They have even shut down the government when they could.
Republicans also dismantle government in the states, cutting taxes for the rich and corporations while cutting the things government does for the state’s citizens. Many of these governors and legislatures achieved majority status following the Supreme Court’s 5-4 Citizens United decision that opened the floodgates of undisclosed corporate and billionaire money into the political process. Once in, they passed restrictive voting rights laws and extremely partisan redistricting plans to lock in their majorities.
After so many years of this, the public is, to say the least, disillusioned to the point of giving up on government – even our current pretense of democracy.
But this has only gotten worse. This year, President Obama submitted his budget to Congress and Republicans refused to even look at it. They refused to schedule hearings before the House and Senate budget committees. They won’t let the director of the Office of Management and Budget (OMB) come to Congress to testify.
Now, to top it all, Republicans have said they will not even consider any presidential nominee to the Supreme Court. If they prevail, the court will operate with only eight members, and precedent assures us that important cases will receive a 4-4 tie.
This Makes No Sense, Unless…
Republicans won’t consider the President’s budget? Won’t consider a Supreme Court nominee – any nominee? Won’t allow important bills to pass? Won’t allow important governmental posts to be filled? Won’t allow important government functions to be adequately funded? Dismantle important state agencies? It’s like Republicans are saying, “No, we’re not going to let you have your constitutional government.”
What is going on?
Republicans are able to do these things to our government because the “framers” of our Constitution never anticipated that a (well-funded) ideology that opposes the very concept of democratic government would capture a political party, gain seats in the Congress and, as a strategy, simply refuse to participate in the processes of constitutional government.
The Founders did require an oath of office that assumes such participation, but they did not outline steps to take should obstruction be used to block operation of the government.
If you look at all of this from a perspective that Republicans are working within our form of government, it makes no sense at all. They have a constitutional duty to pass budgets, but instead allow the government to shut down. They have a constitutional duty to confirm (or not) appointments to government positions and judgeships, but they obstruct. They have a constitutional duty to consider Supreme Court nominees, but they refuse.
But if you consider that their purpose is to fundamentally change our form of government, it all makes more sense.
People who see much of the public as “takers,” who view taxes as “theft,” who view roads, schools and social services as “free stuff” are not people who prefer a democratic form of government. They (or at least those funding them) want a different form of government where the haves have the power and the don’t-haves don’t, instead of We the People sharing the power and the country.
At some point you have to take them at their word and accept that they mean what they say: “We want to get the government small enough to drown it in a bathtub.” We are not looking at a disagreement over how to run our government here, we are looking at a disagreement over our form of government.
But our Constitution is clear on the form of government We the People have. That is why they are intent on setting the Constitution aside. We must tell Republicans that they took an oath to support the Constitution and its processes – or step aside and let We the People have our government back.
What The President Should Do
President Obama should nominate a known and dedicated liberal/progressive to the court, to balance the movement conservatives on the Court now. However, unlike the conservatives, this nominee should mean it when she or he states support the Constitution, and be ready to decide cases based on the Constitution and law, not ideology.
Republicans will always nominate a dedicated movement conservative who is sworn to advance the anti-government (and therefore anti-U.S. Constitution) conservative project, against voting rights, consumer rights, environmental rights, and for corporate rule.
It’s time the right-wing ideologues are called out for their obstruction of democracy – and to make to clear that the presidential candidates who have participated in or have endorsed that obstruction have no place in our government. It’s not just about a budget or a Supreme Court justice; it’s about restoring the principle that the United States must act as a democracy of the people, every day of every year.
Here are two petitions that you can sign to tell Republican senators to “do their job” and consider President Obama’s choice for the Supreme Court:
● The Sierra Club petition: “We Need Three Functioning Branches of Government. Don’t let Congress’s dysfunction spread to the Supreme Court. Tell your senators to do their job and go through the normal constitutionally mandated process of choosing the next Supreme Court Justice.”
● Senator Sherrod Brown petition: “Senators, do your job.” “Tell Republicans: Do Your Constitutionally Mandated Job. The Constitution is clear — the president nominates Supreme Court justices, and the Senate confirms or rejects them. But Republicans in Congress want to ignore the Constitution. They’re saying they won’t consider anyone President Obama nominates. We, the undersigned, are tired of Republicans’ hypocrisy. A Senator’s Constitutional oath applies regardless of which party controls the Oval Office. Stop making excuses and do your job.”
This post originally appeared at Campaign for America’s Future (CAF) at their Blog for OurFuture. I am a Fellow with CAF. Sign up here for the CAF daily summary and/or for the Progress Breakfast.